Article by Nicola Solomon published in The Author of Summer 1997. Leading literary lawyer Nicola Solomon, a Deputy District Judge and Partner of Finers Stephens Innocent (179 Great Portland Street, London W1W 5LS, tel. 020-7344-7652) has kindly given AKME permission to reproduce this article. She can be e-mailed at nsolomon@fsilaw.co.uk.
The article is reproduced without any comment or editing by AKME.
I have recently been involved in an emotional reunion between original cartoon characters, including Basil Brush, Postman Pat and Ivor the Engine, and their illustrators, after absences of up to thirty years. As was common, the illustrators had left their original comic strip illustrations (sometimes many hundreds of pages) with the publisher so that they could be accessed instantly if needed for reissues. The illustrators were happy for the publisher to store the artwork and did not ask for its return, even when the comics ceased publication. However they were horrified to find the publishers in liquidation and their original artwork advertised for sale in Bonhams auction catalogue. We intervened, had the proposed auction halted, and after long legal wrangling, most of the artwork was returned to its true owners. In some cases where artwork had disappeared over the years, we also obtained money damages. Now Bonhams are preparing for another auction - but this time the profits will go to the illustrators.
That case concerned comic magazine publishers, but similar stories can be told of book publishers.The publishing trade is notoriously careless of artwork and I am frequently asked to intervene where it has gone missing, been damaged or disappeared; often, one suspects, to the walls of an admiring editor. What should an author consider when supplying pictures/
Copyright
Many publishing contracts make the author responsible for supplying illustrations, photographs or diagrams. Before entering into a contract make sure you clarify exactly what you are expected to supply, including the number and type of pictures. It is far more expensive to print pictures than text and colour is more expensive than black and white, so if illustrations are essential to your work, ensure the number, type, colour and size are agreed in advance and specified in the contract.
Agree who has the final choice about what pictures are included. Because of the cost of printing pictures and because the look of a book is so important, publishers will normally want the final say. However, ensure this does not bind you to sourcing ever more pictures until the perfect one appears - agree a sensible range from which the choice will be made and insist that the publisher must be reasonable. If the choice of pictures is important to you, insist on a right of veto.
If you intend to provide both illustrations and text (for example in a children's story book) ensure that the contract specifies that they may not be used separately; I have seen a publisher choose to use the story but commission different illustrations, much to the distress of the author who saw the work as an integral whole.
Permissions
Your publishing contract will almost certainly make you responsible for obtaining copyright permissions or licences for any artwork to be included in the book. Establish your likely outlay on such items at the outset. Permissions can be extremely expensive and it may be possible to negotiate with the publisher that it pays a share. If the work is to be lavishly illustrated then the normal arrangement should be that the publisher pays for the illustrations. Even if the publisher will not pay the company will often meet the initial cost and deduct a corresponding sum from your royalties. At the very least, ensure that you are paid an advance on royalties sufficient to cover the cost of any permissions, or you could end up out of pocket.
Find out from the publisher how extensive the permissions need to be. If you have permission for, say, one edition in the UK, you cannot use that artwork in a further edition or an overseas edition of the book without obtaining a further licence and probably paying a further fee. It therefore makes sense to obtain the widest possible permission initially, as at best repeat fees can be expensive, and at worst it may no longer be possible to find the copyright owner, or obtain permission. However, wider initial licences can be more expensive (and almost certainly will be for picture library permissions where the fee is calculated on intended use) so do not go to the expense of unlimited worldwide licences for a book that is only likely ever to be published in a print-run of 3,000 in the UK.
Your contract will probably oblige you to obtain written permissions and to give copies of them to the publisher. Make sure you obtain permissions in writing and keep copies of them so that you cannot later be considered in breach of contract if the publisher uses the work outside the terms of the licence without letting you know. This is very common as publishers find it cheaper to use diagrams from published books than to pay for new artwork. I am the author of a book on personal injury litigation that includes a rather beautiful diagram (not drawn by me) of the bones and muscles of the human body. My publisher was about to give permission for its use in another book when I pointed out that I do not have a licence covering such use and that they would have to contact the original illustrator and pay a fee. They promptly dropped the idea of reusing it!
Exclusive/Non-Exclusive Licences
If there is any specially commissioned artwork, such as diagrams or pictures for an illustrated children's book, the publishers may ask for an exclusive licence to that work or even an assignment of copyright. Occasionally, this may be reasonable, although if the author is also the illustrator, it is probably better to grant the publisher a non-exclusive licence or a licence for book use only, leaving you free to use the illustrations elsewhere. If you are the illustrator, try to avoid assigning copyright as this will give the publisher the right to use your work in other books or to make changes to your originals (although you might in some circumstances have the moral right to object to derogatory treatment of your work). Even if you assign the copyright you will usually still be entitled to the return of the original artwork (see below).
Sometimes illustrators supply roughs from which the publisher has final artwork redrawn. The publisher may then claim that the company or the new illustrator owns the copyright in the final artwork. Although the new work will have copyright, if the original idea was yours and you have not assigned your copyright, you can probably prevent the publisher from using the new work without your permission.
Ownership of Artwork
Copyright is completely separate from the ownership of the physical work. Just because you have assigned copyright or exclusive rights to the publisher does not mean that it owns the original artwork. For example, in the recent row over Princess Diana's letters, her estate owns the copyright in the letters written by her, but the physical letters are owned by Major Hewitt, and he can sue for their return. So you should always put a clause in your contract asking for return of your artwork when the publisher has finished with it.
If you want your artwork returned, send it in with a covering letter, stating that it is yours and asking for an estimate of when it is likely to be available for return. Label all your work carefully with your name, address and phone number. It is also useful to take copies of your artwork; although illustrators usually have no difficulty in recognising their own work, it is difficult for publishers to sort through piles of material to find your vaguely described masterpiece. When you know the book has been printed, ask for your artwork and continue to chase until it is returned. Prompt and repeated requests for return are likely to ensure that the artwork does not go missing. If your editor leaves, ensure that you remind any new editor of your illustrations.
If you are obtaining photos from picture libraries, find out when the pictures have to be returned and tell the publisher of the dates - many picture libraries charge hire fees on overdue photos as well as the licence fee for use of work in the book.
Loss of Artwork
Picture libraries often charge enormous fees for lost photos, so make their value clear to the publisher when supplying them. If possible, ensure that the publisher enters into the contract with the picture library and is responsible for any fees for lost photos. You should not have to pay for your publisher's negligence.
Publishers often forget the value of illustrations, and they do tend to get lost or damaged during the printing process. Most contracts state that the publisher cannot take responsibility for artwork. If your artwork is valuable, consider taking out insurance or asking the publisher to contribute to the cost of doing so. Obviously this is even more important if the illustrations you are supplying are not your own. However, whatever the contract says, the publisher usually does have a legal duty to take reasonable care of your work.
What happens when your artwork has disappeared when you ask for it back? If your illustrations do disappear, don't take no for an answer. It is often worth offering personally to search the publisher's offices. Many of my clients have found their work in the backs of filing cabinets of departed editors. If that does not work contact a solicitor. It is surprising the effect a solicitor's letter has in turning up artwork. If the work is not returned a solicitor can sue for the value of the work.
Do not make the mistake of thinking that your illustrations are not valuable. Original illustrations, like original manuscripts, can become extremely valuable, either for their intrinsic artistic value or because the book has been a success. Consider comic strips: the illustrators did not think of them as very valuable when they drew them but in the intervening years many of the characters have achieved cult status. The original artwork has now become much sought after and the proposed auction prices would have added up to a tidy profit for the liquidators had we not had the work returned. So, when dealing with artwork, be clear about rights and keep track of the pictures.
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